May 3, 2010

Parental Alienation Syndrome refers to a disorder in which a child, on an ongoing basis, belittles and insults one parent without justification, due to a combination of factors, including indoctrination by the other parent (almost exclusively as part of a child custody dispute) and the child’s own attempts to denigrate the target parent. There is no doubt that this disorder exists both in my caseload and in my personal experience.

However, the extent to which the disorder exists is highly disputed. Often, the disorder is blamed for a broken parental relationship, when the real blame is abuse or neglect. So much so that Courts presume that a claim of Parental Alienation Syndrome is synonymous with a lack of personal insight. Moreover, the Courts often see cases in which a misguided claim of Parental Alienation Syndrome goes hand in hand with a lack of amenability towards therapeutic treatment.

The controversy surrounding Parental Alienation Syndrome is not exclusive to the legal system. Psychological experts also dispute the validity of P.A.S. as a diagnosis. And if there is a legitimate diagnosis of P.A.S., what can be done with that diagnosis, if the favored parent and the child are unwilling to participate in meaningful family therapy?

The truth is that it is likely that raising the possibility of Parental Alienation Syndrome will sabotage a custody case. That does not mean that the alienated parent needs to give up all hopes of repairing the parent/child relationship. The trick is to litigate the case without placing a label or a diagnosis on it. It is important to identify the problems associated with the custodial arrangement without diagnosing the problem and developing a focused proposal to repair the relationship with the child that does not blame the child or the other parent.

When I litigate these cases I focus on establishing the parenting problem through concrete proof. I ask my clients to maintain calendars. I ask them to document their efforts to obtain information about their child’s life. I ask them to keep the discussions with the other parent on topic and civil. If they are refused parenting time outright, I ask them to document the refusal. If the children are simply not present, I ask them to obtain proof that they were in the neighborhood (to counter a common argument that the alienated parent did not show up for parenting time). Phone records can be used to demonstrate efforts to call.

Over time, with enough court intervention, high quality, concrete proof can make a huge difference. In Minnesota, for example, one of the basis for obtaining a change in custody is that the other parent has engaged in a pattern of conduct that denies the alienated parent from exercising custodial rights. In my experience, this has never happened overnight. And, if the situation is truly one of Parental Alienation Syndrome, it could be argued that it would not be in the child’s best interest to change custody unless the change were graduated and supported by appropriate therapy.

Courts do not usually change custody without first attempting a number of other “fixes.” The Court will first attempt to clarify a visitation order to ensure that it is clear enough to enforce. Often, where there appears to be a problem with the child’s willingness to attend parenting time, the Court will order some individual or family therapy. If the problem persists, the Court may step up the therapeutic intervention to include both parents.

Thus, my usual focus when I see a viable claim of Parental Alienation Syndrome is to obtain the Court’s assistance to clarify the existing parenting schedule and obtain appropriate therapeutic intervention. I will also sometimes ask for the appointment of a guardian ad litem, who is an individual appointed by the court to represent the child’s best interests. I do not use the phrase Parental Alienation Syndrome.

April 29, 2010

I have a colleague who approaches his family law practice like a ministry. He ensures that his clients’ spiritual needs are being cared for as well as their legal needs. I usually refer spiritual matters to my clients’ respective churches, but that doesn’t mean I don’t inquire into the need for a divorce. Sometimes, people come to see me when they wonder what the grass is like on the other side. Sometimes, they wonder if they are going to be shocked with divorce papers. In those cases, my job is to provide a little legal information and a referral to a marriage therapist, if it seems like a good idea. I wonder if maybe sometimes we could avoid the whole drama by living in the moment a little more. This article in Slate.com suggests that we should maybe spend a little more time in our marriage, rather than with our therapist.

April 12, 2010

I get this question a lot. The answer is that you cannot move your child to another state without obtaining a Court’s permission if there is a custody order in place. Court permission is obtained by making a motion to the Court and convincing the Court that a move is in the best interests of the child. Even if you and the other parent agree to a move, you should still get a Court order.

If you and the other parent don’t agree, you can expect the process to take some time. Sometimes, the Court will want to order a custody and parenting evaluation from Court Services or a private provider. And, the other party is entitled to an evidentiary hearing to contest the findings of the findings of the evaluation.

This process may seem quite involved. However, in hotly contested custody matters, it is the Court’s obligation to ensure that your children are being served well by your decision to move.

If you do take your child out of state, you may be subject to some fairly significant criminal charges. For an example how these issues play out in a real life case, read this article from today’s Star Tribune.

March 2, 2010

I was at a friend’s house recently, and observed her kid-friendly refrigerator. It was cluttered with school papers (with lots of A’s!), reminder slips from dentists and doctors, and pretty watercolors. As a mother of three, her refrigerated reflected her life as a parent–cluttered, messy, and rewarding. Then, I realized that because she was divorced, her family had a whole other calendar in another house! Many parents handle these conflicts with collaboration tools, such as google’s shared calendar. However, there are tech tools that are designed specifically for the needs of families of divorce. Juliana Hoyt reviews them on her blog, Dispute-Ed. I note that Our Family Wizard was created with input by Minnesota attorneys. I do not recommend any particular service, but some form of documented communication and joint calendaring is always a good idea, even if it is a calendar and notebook carried in a backpack.

January 20, 2010

Zsa Zsa Gabor claimed that she received 5,000 Gideon Bibles as part of her divorce from hotel mogul Conrad Hilton.

In a story that sounds like a plotline from Boston Legal, a British Court rejected a husband’s demand that his wife give him back the kidney that he gave to her some years before.

Nobel-laureate economist Robert Lucus had to give up half the cash prize from his Nobel Prize in 1995 to his ex-wife. Had he received the prize in 1996, the terms of the divorce settlement would have given him exclusive rights to the prize money.

If there is any lesson to be learned by these bizarre stories, it’s that a divorce settlement can include just about any term, provided that the parties can agree on a price.

January 14, 2010

A short article in Salon discusses whether it is fair that foster parents are not legally entitled to claim their foster child as a dependency exemption on their taxes. I thought it provides an interesting counterpoint to my recent post about a mother that was unable to prove that she was entitled to a dependency exemption, despite the fact that no one else qualified for the exemption.

January 13, 2010

Friends and Family

Sunday. It’s been a splendid week here in Minnesota. Negative 25 degrees on many mornings. Snow. The holidays are finished; we had some friends over on Friday evening for food and socializing. Jennifer, my son and I are planning trips to her friend’s wedding in Washington State, to a memorial service in Texas, and elsewhere.

My daughter now has two sons so I’m a grandfather twice over. My son is planning to move out and rent his own apartment. He is doing well at his job. He is going to Washington, D. C. to advocate for the handicapped and to Nebraska for the Special Olympics.

Things are changing. My own dying will be life without me. My loved ones and my property will be here after me, so I need to prepare — like you, perhaps.

My younger brother died last spring – hence the memorial service in Texas. Suddenly I felt old, so I reviewed my legacy planning. My will was drawn up before marriage, the trust for my son, who is handicapped, is obsolete. My health care directive has not been signed.

Legacy Planning

So here’s my plan – hire a lawyer for some legacy planning. I did so and she is now working on a new will for me and my wife, a trust for my son, another trust for my daughter – who, it turns out, also has a permanent disability. A new health care directive for me, or at least sign the one I have. Other legal paperwork and decisions.

The Emotional Side of my Will

So much for the mechanics. Being married to a family lawyer with a specialty in trusts and estates, the legal procedures making out a will and the necessary trusts, are proving to be not a problem.

The cause of my procrastination was the emotional side of things, the acknowledgment of mortality, the press and rush of life itself.

Like you, perhaps.

I find it good to take stock weekly, daily, even hourly. It keeps me focused and prepares me and mine for the future as well as the present, both of which are fraught with uncertainty and risk, as well as growth, rewards, and love.

January 12, 2010

I’ve heard it said that we are so fascinated by celebrity stories because they serve as modern morality plays. According to Slate, Bristol Palin is seeking sole custody of her daughter, and Levi Johnston is fighting it. Minnesota (as opposed to Alaska) has a statutory presumption in favor of joint custody. However, the presumption seems to be applied inconsistently. In many cases, the presumption is ignored in favor of an analysis of work and school schedules. In others, the parties are discouraged from raising significant issues of neglect and chemical dependency, based upon the experts’ opinion that these issues would not overcome the statutory presumption in favor of joint custody.

No parent is perfect. I advise my clients to be careful to permit the other parent a certain freedom and autonomy to build their independent relationship with their children. That being said, I cannot advise my clients to ignore true dangers to the mental and physical wellbeing of their children.